Please note that these are a former student's notes. There may be some misspellings, grammar errors, misinterpretations, etc. These class notes also may contain material that we did not cover. They also refer to a textbook that I no longer use. However, you should find these class notes very helpful.

Functional theory - dominates sociology.

Durkheim’s contemporaries are Merton and Parsons.

Society is like the human body.

Durkheim believes that:

All societies have boundaries, the most precise bound is law.

Society is a bounded system.

Each structure in a society has a specific function. That function maintains an equilibrium. All societies tend toward homeostasis.

Society has a built in self-regulating mechanism tending toward equilibrium (immune sys.)

When change happens within one institution, it effects the others.

Darwin = Durkheim

Durkheim was an evolutionist. All change must be slow, gradual, and progressive.

For Durkheim, radical change is impossible (Darwin). This change for Darwin is natural selection (ns).

2. As a self-maintaining system, similar to an organism, society perhaps as certain basic needs or requisites which must be met if survival is to ensue, if homeostasis is to be preserved, or if equilibrium is to be maintained.

3. Sociological analysis of a self-regulating system with needs and requisites should therefore focus on the function of parts in meeting system needs and hence, maintaining equilibrium and homeostasis.

4. In systems with needs, it is probable that certain types of structures must exist to ensue survival/homeostasis. While perhaps several alternate structures can exist to fill the same need, a delimited range of necessary alternative structures exist to fulfill any system need.

A beehive has a structure, a division of labor--Durkheim bases his theory on this. Understand the structure of the beehive and you can better manipulate the structure of society.

Consequence of a social structure: creates a pattern of predictability. A division of labor creates groups; groups predict the behavior of individuals.

Individual variation is a result of social structure variation.

Family Forms

1. nuclear 4. step children/parent 7. polyandry

2. extended 5. adopted

3. one headed 6. polygamy

No family form is best, variability is necessary for survival of a society.

The family forms that adapt the most efficiently to a society becomes the normative order.

Variability is necessary, therefore, homosexuals, Skinheads, and the KKK are healthy for a society.

Laws are morals with precision.

Boundary devices: basic glue that holds a society together is a consensus of values.

Consensus in terms of the prioritization of values.

Attitudes towards behavior determines what is a crime and what is not.

What is criminal and what is the function of punishment?

When boundaries are created, they are designated criminal--crime creates stability.

A crime-free society is impossible.

It is society’s reaction, not the harm that determines the severity of punishment.

Boundaries through the normative order are shown by punishment.

What creates crime waves? People do not know what is wrong--they receive mixed messages. The normative order is being undermined. Crime waves occur during periods of normative instability.

Anomie - normlessness. People commit suicide when a norm is in a temporary state of change and sends out mixed messages.

Anomie is structurally produced, but manifested in the individual. [Gears are grinding]

Groups feeling this - teens. Why? Parents are not being good role models.

Systematic analysis - latch key kid.

Economy and family are under a systematic breakdown manifesting in teens.

Women also get mixed messages. They have to be wives, moms, professionals, and maids.

At the depth of the great depression, a new normative order was created.

Altruistic, the opposite of anomie. Individual is strongly identified with the group (e.g., Jonestown, Kamikaze).

Laws are boundary maintaining devices.

Durkheim visualizes the best way to determine how social stability is created and maintained by examining the types of legal structures a society has.

Solidarity = stability

Two forms of solidarity: 1) Mechanical (2) Organic

Two types of legal structures: 1) Repressive (2) restitutive

You can tell the kind of solidarity that a society has based on the ratio of restitutive to repressive.

Law, a rule of sanctioned conduct, requires the emergence of a sanctioning body.

The function of the criminal justice system is to maintain crime at acceptable levels.

Laws come from the social structure.

Is power a problem for Durkheim? No. The use of power would be to maintain the social structure.

How does Durkheim dismiss hierarchy? Everybody has the same collective conscience; the hierarchy is the collective conscience.

What is the consequence of the emergence of power? A movement toward equilibrium.

Technology is an expression of the collective conscience.

When do we need the creation of a legal system? When there is a breakdown of the collective conscience.

Customs regulate the normative order.

Basis of the legitimacy of people who are in the legal system? They represent the collective conscience.

What causes a breakdown of the collective conscience? A shift, caused from a change in the environment, could be from technology.

As the population increases, so does the breakdown of the collective conscience.

Restitutive law is civil law.

Repressive law is criminal in nature, embodied in the state.

We do not celebrate divorce because it undermines the normative order and disrupts the stability of a society.

Things that get ritualized are essential to a society.

Greatest prevention to chaos is private property. If there were no laws that governed who owns something, there would be chaos. Private property creates order out of chaos.

Concept of property is the essence of stability. Division of labor undermines group activity. The greater the specialization in the division of labor, the more restitutive law expands.

Contract Law - mutual, beneficial--freely entered into.

Each individual is incomplete, they become complete through exchange.

Content of restitutive law? Mirrors the division of labor. It has a facilitative function. It is like oil--makes the system work smoothly.

Durkheim on Restitutive Law and Organic Solidarity

Restitutive law corresponds to a completely different type of social solidarity than does repressive law and its corresponding type of social solidarity.

Restitutive law does not entail retribution--that is, punishment of the individual. The purpose of restitutive law is to restore relations to the way they were--a return in state.

The individual is sentenced to comply with previously established legal obligations. Punishment of the individual is not the purpose of restitutive law.

In modern terminology, restitutive law is equal to our civil laws. These laws regulate interactions among individuals and regulate relations between individuals and innate objects (i.e., private property). Civil law equals private law; repressive law equals public law. Examples of different types of restitutive law include civil law, commercial law, procedural law, administrative law, and constitutional law.

The rules with a restitutive sanction do not totally derive from the collective conscience and are not feeble states of it. Restitutive law’s origin largely is not from morals/customs/diffuse sentiments strongly held by each member of society. These laws are more or less outside the collective conscience.

Restitutive law creates organs that are more specialized than state apparati associated with repressive law. State organs that administer restitutive law involve specialized training. For example, you may specialize in civil law rather than criminal law, however, within civil law you can specialize in rather narrow sub-specialties--divorce law vs., maritime law, etc.

In general, the state’s role in restitutive law is not value-neutral. That is, it is not a value-neutral arbitrator between two parties in legal conflict which the state attempts to strike out a just compromise that both parties more or less will agree to. That is, Durkheim completely rejects the theory of state that is commonly referred to as pluralism.

The state’s role is not value-neutral because through restitutive law it legitimizes normative obligations among individuals/objects that are essential for social stability. For example, restitutive law only condones marriage between one woman and one man. This is not a value-neutral selection; the nuclear family is essential for reproducing the existing normative order.

Perhaps the state’s most demonstrative positivist role (not being value-neutral) is its regulating of individuals to objects. Durkheim refers to the state’s legal regulation of the individual to "things" as "real rights".

One can exercise a real right by thinking one is alone in the world, without reference to other men. Restitutive law regulates your obligations to the objects that surround you.

If you wish, real rights are natural rights. Natural real rights create order. Real rights comprise the law of property in its different forms. Inheritance for example promotes the orderly transfer of property across generation of family. Real rights simply state what exists, they place each object into its proper sphere on social control.

Real rights are the bedrock of social cohesion. They are the fundamental barriers, which prevents anarchy. That is, the state legally condones property rights to assure social stability. Through a spirit of consensual compromise, individuals, to assure order, acknowledge the limited property rights of others.

The ultimate cause for the development of legal real rights is a complex social division of labor.

The introduction of a complex division of labor is the cause for the development of restitutive law. Restitutive law is positivist law.

We can demonstrate how the division of labor produces the need for restitutive law that regulates interactions among individuals by, for example, examining how the division of labor within the family is reproduced in restitutive laws that govern the family.

Restitutive laws govern the respective rights and duties of the couple, the state of their relations in case of divorce, annulment of marriage, separation from bed and board, the effects of abortion, the administration of guardianship, etc. These specific laws reflect the division of labor that occurs in the family. In his words, "Thus this part of civil law has for its object the determination of the manner in which the different familial functions; that is to say, it expresses the particular solidarity which unites the members of a family in accordance with the division of domestic labor" (123).

Perhaps a clearer example of how the division of labor is reflected in restitutive law is by examining ‘contract law’. Durkheim argues that the contract is, par excellence, the juridical expression of co-operation. It specifically regulates interactions among individuals. Contract law has the power to bind individuals in mutual agreement. The law legitimates obligations among individuals through contract law. It lends this obligatory force only to contracts that have in themselves a social value.

In general, Durkheim argues that the division of labor creates social solidarity through the specialization of tasks. That is, the division of labor creates interdependence among individuals who would be otherwise unrelated. Thus, the division of labor creates the need for individuals to co-operate with on another to assure that the task will be completed.

There a multiplicity of contracts that have as their object the adjustment of special, different functions to one another: contracts between buyer and seller, contracts of exchange, contracts between employers and workers, between tenant and landlord, between lender and borrower, etc. In a general fashion, the contract is a symbol of exchange. That is, each individual is incomplete, they become complete through exchange. The division of labor, however, does not equal moral binding. It satisfies needs unrelated to morals, it is morally neutral. Sexual division of labor equal family solidarity.

Another example would be procedural law--which takes care of criminal, civil, or commercial procedure--plays the same role in the judicial scheme. The sanctions of juridical rules of all sorts can be applied only thanks to the interplay of certain number of functions, of judges, of defense counsel, of prosecutors, of jurors, of plaintiffs, defendants, etc. Procedure fixes the way in which they must come into play and relate themselves. It announces what they must be and what each part plays in the general life of the organ.

IN SUM, the relation governed by co-operative law with restitutive sanctions and the solidarity that they express, result from the division of social labor. All law is social. The specialization of the division of labor is reproduced in the specialization of restitutive law. This specialization causes restitutive law, in general, to fall outside of the focal concerns of the collective conscience. They are marginal to the common conscience. The rules that determine behavior cannot have the superior force of the transcendent authority of repressive law. Moreover, even in the special circles where they apply and where, consequently they are represented in people they do not correspond to very active sentiments or even very often to any type of emotional state. They fix the manner in which the different functions ought to occur in diverse combinations of circumstances. The violation of these rules reaches neither the common soul of society in its living parts or even at least not generally that of special groups and consequently it can determine only a very moderate reaction. All that is necessary is that the functions occur in a regular manner. If this regularity is disrupted, it behooves us to re-establish it.

Thus, restitutive law reflects a different type of solidarity than does repressive law. Repressive law reflects a solidarity that implies that individuals resemble each other. Restitutive law reflects a solidarity that implies differences amongst individuals. Each individual has a sphere of action (occupation) which is peculiar to him or her. Each individual depends more heavily on society at large as there is a greater division of labor. The individuality of all grows at the same time as that of its parts. Society becomes more capable of collective freedom, at the same time that each of its elements has more freedom of movement. Each organ has its specific role function, its autonomy. Moreover, the unity of the organism is as great as the individuation of the parts. Because of this analogy, we propose to call the solidarity which is due to the division of labor--ORGANIC SOLIDARITY.

Durkheim on law

Law can be defined as a rule of sanctioned conduct.

Every written law has 2 purposes:

1) to prescribe certain obligations

2) to define the sanctions which are attached to them

Note: this is not the function of law as written by Milovanovic!

Historically, the need for written laws is generated from the breakdown in the collective conscience. When customs continue to function silently, that is there are no problems in individuals knowing what is required of them, there is no reason for transforming customs into laws.

Normally, custom is not opposed to law but, on the contrary, is its basis.

The content of law is equal to those customs that are essential for maintaining social solidarity. Law is essentially a problem of reproducing an stabilizing popular beliefs.

Thus, Durkheim argues that the content of law reflects collectively held sentiments which are essential for maintaining social solidarity. The question then becomes--what about societies that have an unequal distribution of power. Does the creation and administration of laws in these societies reflect the privileged group’s interests. Durkheim argues that although power may be unequal, this does not preclude the consensual base of law. Just because the collective sentiments are enforced through privileged intermediaries, it does not follow that they have ceased to be collective.

Durkheim argues that the need for a separate agency to create and administer as is derived from:

1) the complexities of administration

2) the privileged are themselves authorized interpreters of collective sentiments.

Thus, the state is truly democratic. Its function is to create respect for the beliefs, traditions and collective practices of specific societies. It defends the common conscience against all enemies from within and from without.

The modern state, the body politic is the collective conscience incarnate.

The Evolution of Law

Durkheim argues that an analysis of the historical progression of law can be insightful for determining the basis of social solidarity.

Historically, Durkheim argues that the origin of law can be traced back to religion. This is particularly true for the type of law that Durkheim labels as repressive law. Repressive law is public law. Repressive law regulates the relation of the individual to the state. It requires a definitive organ responsible for administering punishment.

Repressive law equals crime; crime equals punishment. Repressive law is penal law. He argues that penal law announces the fundamental conditions of social life. The legitimacy of penal law and its sanctioning of individuals is derived from the necessity of these laws. It is derived from the customs that they protect. The behaviors that these laws sanction are universally disapproved of by all members of each society.

In essence, these penal laws reflect the moral beliefs of society. That is, the religious base of that society. They only fundamentally different from morals in that they involve a separate agency which administers punishment and they are more precise in condemning specific behaviors. In effect, they are precisely defined morals with incremental punishments attached to them.

The gravity of the punishment attached to penal laws reflects the moral sentiments of that society. Punishment consists of a passionate reaction by the body politic. In primitive societies, the entire village reacted against the individual that transgressed against the moral, legal, accepted boundaries of the society. Presently, the state is the arena in which the passionate reaction against the individual is worked out. We then can say that an act is criminal because it offends strong and defined states of the collective conscience as they are manifested in the state.

In other words, we must not say that an action shocks the common conscience because it is criminal, but rather, that it is criminal because it shocks the common conscience.

The severity of the punishment reflects not the objective harm that the act has on the body politic but rather reflects each society’s perception of which behaviors they perceive to be essential for their social solidarity.

Punishment avenges (retribution) what the criminal expiates an outrage to the group’s morality. The punishment of the collective conscience. The greater the punishment the greater the moral outrage of the common citizenry. Crime brings together upright consciences and concentrates them.

Punishment consists, then, essentially in a passionate reaction of graduated intensity that society exercises through the medium of a body acting upon those of its members who have violated certain rules of conduct.

Thus, historically the origin of law, that is law found in primitive societies, was primarily penal or repressive law. Quite simply, in primitive societies, religion is the basis for custom; custom is the basis for law; law is the basis for the punishment of the individual; thus the earliest forms of law were repressive.

"We have been able to say that all penal law is more or less religious, for its very soul is the sentiment of respect for a force superior to the individual man, for a power in some way transcendent, under some symbol which it makes to penetrate into consciences, and this sentiment is also at the basis of all religiosity. That is why, in general fashion, repression dominates all law in the lower societies. It is because religion completely pervades juridical life, as it does, indeed, all social life" (141).

In general, Durkheim argues that law reproduces two principal forms of social solidarity. Societies characterized by a disproportionate number of penal laws (repressive laws) are ones whose social solidarity is principally mechanical. Mechanical solidarity (regulated by custom) is when social cohesion is derived from shared beliefs and customs. Individuals are bound together due to their similarities. Durkheim attributes mechanical solidarity principally to preliterate societies. These societies do not have a complex division of labor and are low in population density.

In short, mechanical solidarity equals preliterate societies which equals societies who are held together principally by religious based morals and customs and these societies primarily have repressive laws. Preliterate societies are extremely stable because the group is close.

Two things will destroy mechanical solidarity:

1) a high population density

2) technology

Durkheim argues that modern societies are characterized by another form of law--restitutive law--which reflects another form of solidarity--organic solidarity. In this type of solidarity, the division of labor creates the stability.

Inverarity Ch.4 The Contributions of Durkheim

Punishment serves as social rituals that bring together good members of the community. It provides them with an opportunity to reaffirm and intensify their commitment to shared values and a common identity. Rituals of all kinds strengthen social bonds.

Punishment is more proactive than reactive.

Ritual punishment and solidarity are functionally linked.

Criminality is the product of ritual punishment; it is not a property of the behavior punished, but a reflection of the solidarity needs of the community.

There does not have to be a social harm for a behavior to be punished.

Some groups have a high level of commonality.

The community is brought together via the reaction to crime. Conversely, a disruption of the community’s solidarity will lead it to seek out crime to punish. ?Does this explain Shaw and McKay’s disruptive neighborhood and concentric circles in the social disorganization theory (ecological crime approach)?

Crime is a creation of punishment rather than an instigator of punishment.

The ritual is needed to reestablish the norms, therefore, the crime was a creation of the need for punishment.

The Puritans created an unusually homogeneous society characterized by a high level of common commitment. There was a lot of community solidarity. Self-interest would have led the community to destruction.

These are exactly the conditions needed for Durkheim’s theory: The group had a high degree of commonality. According to Durkheim, crime is functional in a society--it is needed in order to reestablish the normative order. This was the result of some threat or attack on the norms. Diversity was not good. They needed to create a crime for the purpose of ritual punishment in order to reestablish the norms/boundaries of society.

Unorthodox ideas were becoming commonplace in this age THREAT:

1) The birth of modern natural science.

2) Newton & gravitation.

Heaven and Hell, to Puritans, were real places. The Puritans expected their new homes to be challenged by Satan, and were ready to defend the Church against the forces of evil. So, they were looking for an enemy in the form of Satan.

The Puritan legal system combined two diverse sources of law:

1) Biblical commandment

2) English common law.

Anne Hutchinson’s home discussions so turned to criticism of the character and competence of the local ministers. She embodied the contradiction in Puritan values between the tradition of individualism and the necessity for authority, that is, the Puritans thought that since all were Christians, there was no need for only one minister to guide them--they thought all would end up with the same ideas.

We can see parallels here between A.H. and Animal Farm; when the animals started to speak out against Napoleon, he had 4 pigs "confess" and had them executed. The confessions set off a wave of confessions of guilt and resulted in numerous executions. This made his power visible, felt, and feared--reestablishing the norms of the farm.

The conviction of A.H. ended the first boundary crisis. It eliminated the contradiction of anarchy prevalent in Puritan beliefs and established the legitimacy of a hierarchy within the Church.

Thus, episodes of repressive justice occur in response to organizational problems of solidarity.

Of central importance in this issue is not the outcome of A.H.’s trial, but the relationship between the Puritan boundary crisis and the FORM of crime discovered by the community. If the trail results in conviction, solidarity will be restored.

Next, was the threat of the Quakers--their innovations were a threat to Puritan ideas, which also resulted in the Puritans criminalizing Quaker behaviors. Again, the ritual was used to strengthen solidarity--but, it failed (no conviction). Thus, the sense of identity, of common mission, and unanimity was greatly weakened.

To Durkheim, there are two forms of social solidarity:

1) Mechanical

2) Organic

Mechanical solidarity is based on similarity of individual characteristics (common race & region) and is characterized by a consensus on values, harmony (if not identity) of interests, and unity of purpose. Strong ties bind members of mechanically solidarity communities.

Mechanical solidarity generates repressive justice, which reaffirms a common value through diffuse forms of ritual punishment. The forms of punishment can range from ostracism to execution. All forms of repressive sanctions change the status of the offender, increasing the social distance between normal and deviant actors--the person being punished takes on a new role.

Organic solidarity arises from a diversity of individual interests and is characterized by interdependence and exchange. It consists of weak ties among members of the community, the stabilization comes from the division of labor.

This type of solidarity generates restitutive sanctions, characterized by efforts to restore the disrupted relationship, rather than stigmatize the offender.

The solidarity of any particular society will be a mixture of organic and mechanical; its legal system, a mixture of repressive and restitutive sanctions. No existing society is integrated solely by mechanical solidarity.

Mechanical solidarity is replaced by organic. This happened when capitalism replaced feudalism.

This transition has many consequences for law:

1) civil law would increasingly replace repressive law.

2) the state becomes autonomous in what it deems criminal behavior.

3) the sanction responds more to the behavior of the deviant, rather than the state of the collective conscience.

There is a systematic sanction between the legal sanction and solidarity.

It does not matter if we punish someone for doing something wrong, all that matters is that we punish someone for something. What matters is the perception.